The 9th Amendment to the Act Against Restraints of Competition will introduce a “light” version of pre-trial discovery in Germany. Anticipated to come into force in May 2017, the law will grant a claim for disclosure of relevant evidence in cartel damage cases.
Victims of competition law infringements will be able to request relevant evidence necessary for supporting a claim for damages even before filing an action (pre-trial). It suffices to demonstrate the plausibility of their cartel damage claim. This bears additional risks for offenders: The claim allows (alleged) victims of competition law infringements to better analyse their chances and to substantiate the amount of the damages. In addition, they might use the disclosure claim to exert pressure in settlement negotiations between the parties.
By contrast, offenders can request the disclosure of evidence which is necessary for their defense only after actions are already pending.
Third parties in possession of relevant evidence can also be addressees of the disclosure claim. This applies even to third parties having a general legal right to refuse to give evidence if the court comes to the conclusion that the interests of the claimant prevail. Yet, the latter does not apply to lawyers (and certain other professionals such as journalists and clergy).
- However, there are certain limitations to the German pre-trial discovery “light”:
- The requested evidence has to be described as precisely as possible on the basis of reasonably available facts.
- The disclosure of evidence is limited to what is proportionate.
- Privileged documents are exempt from disclosure (e.g. leniency statements and settlement submissions).
- The party seeking disclosure is obliged to reimburse the expenses incurred by the defendant due to the disclosure.
In spite of these limitations, we expect that the pre-trial discovery “light” will be burdensome to the addressees: They will have to (i) review their large data pool in order to identify the requested evidence, (ii) assess its impact on the proceedings, (iii) identify privileged documents and (iv) possibly redact confidential information.